Exhibit 10.2


 




 





AMENDMENT TO
THE


 


PURCHASE
AGREEMENT


 


regarding the
shares of


 


Suez-Lyonnaise
Télécom SA


 


and certain
Intercompany Loans


 


dated as of


 


15 March, 2004


 




 





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This amendment agreement (the “Amendment Agreement”) to the Purchase
Agreement regarding the shares of Suez-Lyonnaise Télécom SA and certain
Intercompany Loans dated March 15, 2004 (the “Purchase Agreement”) is entered into on July 1, 2004, by
and among:


 


MédiaRéseaux SA, a French société anonyme organized under the laws of France, with a capital of 94,296,084.29, having its
registered office at 10, rue Albert Einstein, 77420 Champs-sur-Marne,
registered with the Registry of Commerce and Companies of Meaux under the
number 404 453 615, duly represented by Mr. Ray Collins, duly
authorised (“Buyer”),


 


Suez SA, a société
anonyme organized under the laws of France having its registered
office at 16, rue de la Ville-l’Évêque, registered at the Registry of Commerce
and Companies of Paris under the number 542 062 559, duly represented by Mr.
Michel Sirat, duly authorised  (“Seller”);


 


UPC France Holding BV, a Netherlands private
limited liability company having its principal offices at Boeing Avenue 53,
1119PE Schiphol-Rijk, Postbus 74763, 1070BT Amsterdam, registered at the
companies registry of Amsterdam under the number 34139074, duly represented by
Mr. Ray Collins, duly authorised (“UPC
Shareholder”); and


 


UnitedGlobalCom, Inc., a Delaware
corporation, duly represented by Mr. Jeremy Evans, duly authorised (“UGC”).


 


(MédiaRéseaux,
Suez, UPC Shareholder and UGC are also herein collectively referred to as the “Parties” and individually as “a Party” or “each Party”).


 


W I T N E S S
E T H


 


WHEREAS, the Parties have entered into the Purchase Agreement;


 


WHEREAS, the
Parties now wish to amend the Purchase Agreement on and subject to the terms of
this Amendment Agreement;


 


In this
Amendment Agreement, unless otherwise provided or the context otherwise
requires, terms and expressions defined in the Purchase Agreement have the same
meaning when used in this Amendment Agreement.


 


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NOW, THEREFORE, the Parties, intending to be
legally bound, agree as follows.


 


1.                                      COVENANTS OF SELLER AND BUYER


 


1.1                                 Section 5.8(b) “Provision
of Financial Statements, Reports and Certain Other Information”
of the Purchase Agreement is hereby amended by deleting
it in its entirety and substituting the following Section:


 


“Seller shall
deliver to Buyer the 2003 Financial Statements within 3 days following the
delivery by the statutory auditors of their report on such financial
statements.  Buyer shall deliver to
Seller the UPC 2003 Financial Statements on the same day.  Immediately
prior to and after Closing Buyer will provide reasonable access for Ernst &
Young, the Seller’s statutory auditors to the 2003 audit report of KPMG,
Buyer’s statutory auditors, on the UPC France Companies as it pertains to the
consolidation of UPC France within the UPC Distribution group.  In addition, at Closing the audited 2003
accounts and auditors report of UPC France SA will be provided.  All references to the “UPC Audited 2003
Financial Statements” or the “UPC Unaudited 2003 Financial Statements” in this
Agreement shall be interpreted as references to the “UPC 2003 Financial
Statements” and all references to the “UPC 2003 Financial Statements” as being
audited shall be ignored in construing this Agreement.  Seller hereby acknowledges that the UPC 2003 Financial Statements
in the form attached to this Agreement have not been certified by the statutory
auditors of Buyer with the understanding that such acknowledgment shall not
impair or affect whatsoever the obligation of Buyer to deliver to Seller the
audited consolidated accounts for the period commencing on January 1, 2004
and ending at the Reference Date for the UPC French Cable Business provided for
in Article 2.7.1 (b).”


 


1.2                                 Section 5.9.2 “Conversion of Portions of Intercompany Loan, Buyer
Intercompany Loans and UPC France Intercompany Loan” of the
Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the following Section:


 


“Prior to the
Closing Date, Buyer shall procure that Buyer Intercompany Loans are paid off or
capitalized so that the debt of the Buyer, such debt not including debt
incurred in connection with the transactions contemplated by this Agreement, at
Closing does not exceed EUR 60 million and Buyer shall pay off or capitalize
the UPC France Intercompany Loans to the UPC France Companies.  Any such capitalization of Buyer
Intercompany Loans and UPC France Intercompany Loans shall be done so as not to
create income to the UPC France Companies.”


 


1.3                                 Section 5.11 “Affiliate Commercial Contracts” of the
Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the following Section:


 


“UPC Shareholder will deliver to Seller as soon as
practicable after Closing a detailed description of the financial effect on
Buyer and its Subsidiaries of the contracts with respect to the services listed
in Schedule 5.11 (including in particular a comparison with the current
financial conditions of the corresponding services at the Company’s
level).  The Parties will use best
efforts to agree the material terms of the contracts with respect to the
services listed in Schedule 5.11 within 30 days of the delivery of such
description, recognizing the key principles of (i) permitting Buyer and its
Affiliates to realize synergies within the UPC Group and (ii) that the


 


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contracts must be in the corporate interest of Buyer, taking
into account, in particular, the preservation of the interests of both
shareholders in Buyer.  To the extent
agreement with respect to the material terms of contracts for the services
listed in Schedule 5.11 is reached prior to the expiry of the 30 day
period referred to above, Exhibit 2.2(c)(2) to the Shareholders Agreement will
be completed with effect from Closing to contain a summary of such services and
the corresponding material terms.  As to
any services for which agreement on material terms is not reached before the
expiry of the 30 day period, Buyer may nevertheless proceed after the expiry of
the 30 day period with the implementation of such service arrangements with
effect from Closing, subject to and in accordance with the procedures of
Section 2.2(c)(2) of the Shareholders Agreement.”


 


1.4                                 A new Section 5.17 “New Paris Première Contract” of the
Purchase Agreement is added as follows:


 


“If it appears that the annualised financial consideration
payable under the new Paris Première contracts entered into shortly before the
Signing Date exceeds that payable under similar programming contracts then
effective in the market (the “deviation”), by ten per cent (10%) or more, the
Buyer and its Subsidiaries shall be compensated for the full deviation and
compensation shall be implemented by way of an increase in the annual financial
consideration payable under the GSA agreement, or such other intercompany
agreement with respect to the services listed in Schedule 5.11 as is
nominated by Buyer, such that the aggregate payments under such agreement are
increased by an amount equal to the deviation. 
In the absence of such compensation, Seller shall be deemed to have
warranted that the deviation shall not be more than ten per cent (10%) and
Buyer shall be entitled to claim indemnification under Section 9 of the
Purchase Agreement for the full deviation but without the application of the
limitations on Seller’s liability under Section 9.7. For the purposes of
clarity, the ten million euros (€10,000,000) threshold set forth in
Section 2.2 (c) (2) of the Shareholders Agreement shall,
accordingly, not be applicable to the GSA agreement or any such other
intercompany agreement as nominated by the Buyer.”


 


1.5                                 A new Section 2.7.8 “Consolidation Shares Amount Adjustment” of
the Purchase Agreement is added as follows:


 


“For the sake of clarity, it is understood that any
difference between the Provisional Consideration Shares Amount and the
Consideration Shares Amount, as finally determined in accordance with
Section 2.7 of the Agreement, will first lead to an adjustment of the Cash
Consideration and, secondly, only if and to the extent necessary, of the
Consideration Shares Amount.”


 


2.                                      CONDITIONS TO BUYER’S OBLIGATION TO CLOSE


 


A new Section 5.18 “Cannes
and Epinal Networks” of the Purchase
Agreement is added as follows:


 


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“The Parties acknowledge that
Seller has satisfied the condition precedent in Section 7.4(b) and
further agree that Seller shall use its best efforts to assist Buyer and on
behalf of Rapp 16 SA in executing the deed of notary for non moveable assets of
the Cannes and Epinal Networks as soon as practicable after Closing.”


 


3.                                      UPC REPRESENTATIONS AND WARRANTIES


 


As a result of the non certification of the  UPC Unaudited 2003
Financial Statements,
Schedule 4, Section 4 “Accounts” of the
Purchase Agreement is hereby amended by deleting it in its entirety and
substituting the following Section:


 


(a)                                  “Attached hereto as Exhibit 4(a) is
a certified copy of the consolidated financial statements of the UPC France
Companies (balance sheet, profit and loss statements and notes thereto) for the
fiscal year ended December 31, 2003 (the “UPC 2003 Financial Statements”).  The UPC 2003 Financial Statements are accurate and sincere in
accordance with the UPC France Companies’ books and records. The UPC 2003
Financial Statements have been prepared in accordance with US GAAP, and give a
true and fair view of the consolidated financial position and results of
operations of the UPC France Companies as at the date at which they were
established and for the annual period then ended.


 


(b)                                 Each of the UPC Management Financial
Reports for months in 2004 ending on the month preceding that in which the
Closing Date occurs, have been and will have been prepared in good faith.


 


(c)                                  Except as disclosed in Exhibit 4(c),
there are no off-balance sheet items or any other Indebtedness or liability,
absolute or contingent (including any Liabilities relating to factoring or
crédit-bail arrangements) that should be accounted for in accordance with US
GAAP which will not be fully accrued or provisioned in, or otherwise disclosed
in the exhibits to the UPC 2003 Financial Statements or the UPC French Cable
Business Reference Date Accounts as at the date at which they were established.


 


(d)                                 Except as set forth in Exhibit 4(d),
none of the UPC France Companies has granted any guaranty, charge or other real
or personal security for its own Liabilities or Liabilities of any Person,
including UGC or any Affiliate of UGC, outside of the normal course of business
or which is not reflected in the UPC 2003 Financial Statements or the UPC
French Cable Business Reference Date Accounts, as the case may be.


 


(e)                                  There is no Indebtedness of any kind,
including any account advance or cash pooling agreement, existing or to be
incurred on or prior to the Closing Date payable by Buyer or its Affiliates to
any of the UPC France Companies or by any of the UPC France Companies to Buyer
or its Affiliates except as identified in Exhibit 4(e).


 


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(f)                                    Except as shown in the UPC 2003 Financial
Statements, the UPC French Cable Business Reference Date Accounts or in Exhibit
4(f), none of the UPC France Companies is directly or indirectly liable
upon or with respect to (by discount, repurchase agreements or otherwise), or
obliged in any other way to provide funds in respect of, or to guarantee or
assume, any debt, obligation or dividend of any Person, except endorsements in
the ordinary course of business in connection with the deposit, in banks or
other financial institutions, of items for collection.


 


(g)                                 Except as set forth in Exhibit 4(g), none of the UPC
France Companies has at any time within the past five (5) years suspended the
payment of its debts as they fall due (“cessation de paiements”) or been
declared in judicial liquidation (“liquidation judiciaire”), or made an
amicable settlement with its creditors (“règlement amiable”), or been declared
in judicial reorganization (“redressement judiciaire”), or been declared under
the threat of any such proceedings.”


 


4.                                      MISCELLANEOUS


 


4.1                                 Absence of Novation


 


Subject
to the amendments referred to in Sections 1, 2 and 3 hereof, the Purchase
Agreement shall remain in full force and effect.


 


This
Amendment Agreement does not result in the novation of the obligations of the
Parties under the Purchase Agreement.


 


4.2                                 Applicable Law


 


This Amendment Agreement shall be governed by
and implemented, construed and interpreted in accordance with the substantive
laws of the Republic of France.


 


4.3                                 Consent to Jurisdiction


 


Any controversy or claim arising out of or
relating to this Amendment Agreement which cannot be settled amicably shall be
submitted to the exclusive jurisdiction of the courts in Paris, France.


 


The validity, construction, performance and
enforceability of this Amendment Agreement shall be governed by the laws of
France, without application of its conflict of laws principles.


 


IN WITNESS WHEREOF, this Amendment Agreement
has been signed by or on behalf of each of the Parties as of the day first
above written.


 


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  SUEZ SA

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michel Sirat

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michel Sirat

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDIARESEAUX
  SA(S)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Raymond Collins

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Raymond Collins

  
	
   

  	
   

  	
  Title:

  	
  Director Strategy

  
	
   

  	
   

  
	
   

  	
  UPC FRANCE HOLDING BV

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Raymond Collins

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Raymond Collins

  
	
   

  	
   

  	
  Title:

  	
  Director Strategy

  
	
   

  	
   

  
	
   

  	
  UNITEDGLOBALCOM, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jeremy Evans

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jeremy Evans

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
								



 


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